Author: Vatche Chakhmakhchian

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

As EU leaders gather in Granada today, their most publicised agenda item is the situation with Armenia after Azerbaijan took control of Nagorno-Karabakh following a 24-hour military operation that ended almost four decades of tension.

The international press has focused on Azerbaijan’s strongman, Ilhan Aliyev, who snubbed the five-way talks planned on the sidelines of the summit with the leaders of France, Germany, and Armenia, hosted by Council President Charles Michel.

Such a snub is embarrassing for the hosts. But Aliyev is the EU’s favourite dictator. After Russia attacked Ukraine, Azerbaijan’s gas became precious as Russian supplies dwindled.

Aliyev has so far accepted all the invitations by the EU’s Michel to discuss Karabakh, and there were many photo opportunities with his Armenian counterpart Nikol Pashinyan, despite the total failure of the exercise.

Now Aliyev took Karabakh as a low-hanging fruit because he could.

He can also claim there is no ethnic cleansing: The population of 120,000 left to seek refuge in Armenia, not because Aliyev’s army drove them out but because they feared this would happen. There is no damage to civilian infrastructure such as hospitals, schools and housing or to cultural and religious sites in Karabakh, the UN said.

So everything is fine, the EU’s favourite dictator has accomplished the perfect war – without casualties, without destruction, without war crimes.

Moreover, under international law, Nagorno-Karabakh is the territory of Azerbaijan, so one may argue that this was going to happen sooner or later.

Aliyev succeeded, it seems, because Europe has forgotten how things went down in Munich in 1938.

Appeasing the dictator (Hitler in that case) was the basis of the 1938 agreement between France, the UK, fascist Italy, and Nazi Germany. It essentially provided for the German annexation of a part of Czechoslovakia called the Sudetenland, where more than three million people, mainly ethnic Germans, lived.

Giving Hitler “what he wants” to appease him was of course a shameful and wrong move.

Aliyev is suspected of gearing up for another war, whose aim is to establish a land corridor between the Azeri enclave of Nahichivan and mainland Azerbaijan – by grabbing Armenian territory.

And he has the support of Turkey, which has megalomaniac dreams about a bigger Turkic corridor, all the way from Anatolia to the Uigurs in China. The only piece of land lacking to complete this puzzle is Armenian territory.

Aliyev knew he would be under pressure in Granada, alone against four at the five-way talks, so he turned down the invitation. As a pretext, he used “pro-Armenian statements” by French officials and an alleged French decision to supply Yerevan with military equipment.

French Foreign Minister Catherine Colonna was the first Western official to visit Yerevan after the fall of Karabakh. But she didn’t announce a decision to supply Armenia with French armament. What she said was:

“France has given its agreement to the conclusion of future contracts with Armenia, which will allow the delivery of military equipment to Armenia so that it can ensure its defence.”

Giving “an agreement” for the conclusion of future contracts does not mean military supplies would start anytime soon. And France doesn’t have much to send anyway, as the supplies sent to Ukraine have dried up the stocks.

The real context: France is home to half a million ethnic Armenians and Colonna needed to visit Yerevan and say something that would sound nice and appropriate. Aliyev knows that, but the pretext was just too good to pass up.

The EU made a major mistake by not inviting Turkish President Recep Erdoğan to the five-way mediation talks in Granada. The Turkish president is a major player in the region, and a strong backer of Azerbaijan, and should not be absent from such talks.

If the Granada meeting was expected to be a milestone, indeed, it will be one, in terms of failed European policies.

The gathering will likely encourage Aliyev and Erdoğan to go ahead and grab from Armenia what they want. The Armenians can try to fight – but perhaps they had better surrender. It seems no one is really prepared to help them.

[Edited by Zoran Radosavljevic]

by Michael N. Schmitt, Kevin S. Coble | Sep 29, 2023

Editors’ Note: In a prior post, the authors presented background material and jus ad bellum analysis of an ongoing situation between Armenia and Azerbaijan in the Nagorno-Karabakh region. In this post, they address jus in bello and other international legal issues related to the situation.

International Armed Conflict

Armenia and Azerbaijan have been involved in a continuous “international armed conflict” almost since they declared independence. Common Article 2 of the four 1949 Geneva Conventions (to which Armenia and Azerbaijan are parties) sets forth the accepted definition of such conflicts: “declared war or of any other armed conflict which may arise between two or more [States], even if the state of war is not recognized by one of them.” It also extends the status to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Thus, international armed conflict can exist because of hostilities between States or an ongoing occupation (or both).

Concerning the former, the 1960 Geneva Convention III Commentary to Common Article 2 explains:

any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces.

The International Committee of the Red Cross (ICRC) endorsed this interpretation, with which we agree, in its 2016 Geneva Convention I Commentary to the article (para. 237). Over the past decades, hostilities between Armenia and Azerbaijan have easily crossed the requisite intensity threshold for international armed conflict.

Yet there have been significant lulls in the fighting since 1991. This brings into play the second basis for the existence of an armed conflict – belligerent occupation. Article 42 of the Hague Regulations annexed to the 1907 Convention (IV) Respecting the Laws and Customs of War on Land provides, “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” In other words, there is a two-part, factual test for occupation: 1) “the ousted government is incapable of publicly exercising authority in that area;” and 2) the foreign army is “in a position to substitute its own authority for that of the former government” (Benvenisti). As Yoram Dinstein has observed, “Effective control is a conditio sine qua non of belligerent occupation” (para. 136).

Admittedly, the NKR has the trappings of an independent State, including a President and Prime Minister, a National Assembly, typical ministries for, inter alia, foreign affairs, justice, and the economy, and a well-organized and equipped Defence Army. Nevertheless, it is clear that Armenian civil and military authorities have controlled Azerbaijani territory to the exclusion of Azerbaijani authority, both directly and by proxy, since 1992.

Indeed, in Chiragov v. Armenia, the Grand Chamber of the European Court of Human Rights considered the matter (see also Sargsyan v.Azerbaijan and Milanovic’s discussion). The Grand Chamber discussed how the NKR is integrated into and dependent on Armenia. For example, its residents are issued Armenian passports; politicians hold, at different times, positions in both Armenia and the NKR; Armenian law-enforcement agencies operate in the territory; and Armenian courts exercise jurisdiction in it (paras. 78 and 182). Based on these and other relevant facts, it concluded that “the ‘NKR’ and its administration survive by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno‑Karabakh and the surrounding territories, including the district of Lachin” (para. 186).

Indeed, the international community has regularly characterized Nagorno-Karabakh and the surrounding area as occupied by Armenia. As noted, the UN Security Council did so in four resolutions in 1993 alone. For example, the first “[d]emand[ed] the immediate cessation of all hostilities and hostile acts with a view to establishing a durable ceasefire, as well as immediate withdrawal of all occupying forces from the Kelbadjar district and other recently occupied areas of Azerbaijan” (UNSCR 822). Like the other three, it “[r]eaffirm[ed] . . . respect for sovereignty and territorial integrity of all States in the region,” as well as “the inviolability of international borders and the inadmissibility of the use of force for the acquisition of territory.”

Even more broadly, in 2008, the UN General Assembly passed Resolution 62/243. It referenced previous resolutions and Minsk Group reports, which referred to the territory as occupied, and “demanded the immediate, complete and unconditional withdrawal of all Armenian forces from all the occupied territories of the Republic of Azerbaijan” (the United States, United Kingdom, and Russia voted against the resolution on unrelated grounds). Similarly, two years later, an OSCE Minsk Group Field Assessment Mission identified the region as the “Occupied Territories of Azerbaijan.” Even the 2020 ceasefire agreement required Armenia to “return the Kelbajar region to the Republic of Azerbaijan by November 15, 2020, and the Lachin region by December 1, 2020,” thereby confirming the authority and control Armenia exercised over the territory. There appears to be broad consensus that Armenia has long occupied Nagorno-Karabakh and the surrounding area. As a consequence, an international armed conflict existed throughout this period.

End of Occupation and International Armed Conflict?

Armenia claims it no longer maintains forces in the area. Yet, that does not mean it was not occupying its adversary’s territory. As Tristan Ferraro has convincingly argued, “a state [is] an occupying power for the purposes of IHL when it exercises overall control over de facto local authorities or other local organized groups that are themselves in effective control of a territory or part thereof.” In support, he points to the International Criminal Tribunal for the former Yugoslavia Trial Chamber judgment in the Tadic case, which found that “‘the relationship of de facto organs or agents to the foreign Power includes those circumstances in which the foreign Power ‘occupies’ or operates in certain territory solely through the acts of local de facto organs or agents” (para. 584), as well several other decisions from that body and the International Court of Justice (Ferraro, p. 159). In other words, to qualify as an occupying power, a State must be in overall control of a proxy group that effectively controls the area. Although some degree of Armenia’s control over the occupied territory was lost in 2020, enough survived to meet the requisite tests (see also Vité p. 74-75). Thus, NKR’s “governance” preceding the recent round of fighting affected neither the fact of occupation nor the existence of the Armenia-Azerbaijan international armed conflict.

However, depending on how the facts on the ground unfold, the occupation may be coming to an end. Once Azerbaijan supplants NKR authority, the requisite NKR effective control will be absent, as will Armenian overallcontrol. Of course, as Yoram Dinstein has cautioned, “A definitive close of the occupation can only follow upon a durable shift of effective control in the territory from the Occupying Power to the restored sovereign” (para. 832). But it appears that shift might be underway.

As to the ceasefire, it has no bearing on the existence of the ongoing international armed conflict. As one of us previously explained, “ceasefires” suspend hostilities, “armistices” end the armed conflict, and “peace treaties” restore peaceful relations between the belligerents (see also Dinstein p. 36-64). Azerbaijan and Armenia had only entered into ceasefire agreements in the past, thereby temporarily halting hostilities. And because Armenia is not a party to the current agreement, it is but an agreement between Azerbaijan and proxy forces in the field (ceasefires are typically between fielded forces). Hopefully, the parties will move towards an armistice agreement or even a peace treaty. Still, for now, Armenia and Azerbaijan remain parties to an international armed conflict (on the separate issue of when the application of IHL ends, see Milanovic).

Humanitarian Assistance

Azerbaijan’s interference with the Lachin corridor, the only supply route from Armenia to Nagorno-Karabakh, raises additional legal issues regarding humanitarian assistance (see Pejic). The relevant rules are found in the Geneva Conventions, especially Geneva Convention IV on the protection of civilians, and customary international law. Although the 1977 Additional Protocol (I) to the Geneva Conventions also addresses humanitarian assistance (arts. 68-71), it is inapplicable here since Azerbaijan is not a party.

Under IHL, the party in whose power civilians and other protected persons find themselves is responsible for satisfying their basic needs. In this regard, Article 55 of Geneva Convention IV provides that “[t]o the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” It, therefore, fell to Armenia and its NKR proxy to care for the population of the occupied territory.

Should an occupying power be unable to supply the population with the necessary assistance, it must, under Article 59 of Geneva Convention IV, “agree to relief schemes on behalf of the said population, and . . . facilitate them by all the means at its disposal.” Further, Article 10 emphasizes the right of humanitarian organizations to provide assistance:

The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and for their relief.

Armenia had complied with this obligation by allowing the delivery of assistance into occupied areas through the Lachin corridor.

This raises Azerbaijan’s responsibility. By Article 59,

All Contracting Parties shall permit these consignments’ free passage and guarantee their protection.

A Power granting free passage to consignments on their way to territory occupied by an adverse Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.

The ICRC contends that this is a customary law obligation, reflected in Rule 55 of its Customary International Humanitarian Law study: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.” We agree.

Therefore, the question is whether Azerbaijan’s actions were justified based on its right of control. In this regard, the 1958 Commentary to Article 59 provides, “The State granting free passage to consignments can check them in order to satisfy itself that they do in fact consist of relief supplies and do not contain weapons, munitions, military equipment or other articles or supplies used for military purposes.” While the State is entitled to prescribe routes and timing consistent to address security concerns, any decision that limits qualifying humanitarian assistance must not be “arbitrary” (see Pejic).

Although Azerbaijan asserts that security reasons justified interference with transit through the Lachin corridor, the claim is not credible, at least not in light of the extent to which the humanitarian assistance was blocked. For instance, Azerbaijan’s involvement in the protests blocking the Lachin corridor is at issue in an ongoing International Court of Justice case brought by Armenia alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The court has noted that “restrictions on the importation and purchase of goods required for humanitarian needs, such as foodstuffs and medicines, including lifesaving medicines, treatment for chronic disease or preventive care, and medical equipment may have a serious detrimental impact on the health and lives of individuals” (para. 55). Accordingly, in February 2023, it ordered Azerbaijan to “take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.” (para. 67).

Although this ruling was based on Azerbaijan’s CERD and 2020 ceasefire obligations, the logic applies equally to the IHL obligations set forth above. It seems clear that Azerbaijan has violated the order (reaffirmed in July) and its humanitarian assistance obligations under IHL. Fortunately, aid, including from the ICRC, is beginning to trickle in.

Breach of Ceasefire

Azerbaijan’s failures to abide by the 2020 ceasefire agreement’s terms regarding transit through the Lachin corridor and suspension of hostilities amount to “material breaches” of the agreement, which are defined by the Vienna Convention on the Law of Treaties as “violation of a provision essential to the accomplishment of the object or purpose of the treaty” (art. 60(3)). The law governing material breaches of a ceasefire is found in the Regulations annexed to the 1907 Hague Convention IV (the treaty uses the term “armistice” to refer to what is today labeled a “ceasefire”). They reflect customary international law.

Article 36 of the Hague Regulations provides that parties to a ceasefire may resume their operations despite the ceasefire so long as they provide advance notice to the adversary (see also Dinstein paras. 171-75). There is no indication that Azerbaijan did so either before it interfered with the Lachin corridor or launched its current operations.

Article 40 provides the remedy for such breaches: “Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.” Accordingly, Armenia could have denounced the agreement when Azerbaijan violated it by impeding traffic in the Lachin corridor. It elected not to do so. And concerning the most recent hostilities, Armenia could likewise have denounced the ceasefire and resumed hostilities. It has not availed itself of that remedy, and it is difficult to see how it might make out a case for reparations under the law of State responsibility on the basis of injury suffered (see Articles on State Responsibility, arts. 31 and 34).

Amnesty

The 20 September ceasefire between Azerbaijan and the NKR provides for demilitarization of the latter’s forces. That appears to be underway, and there are reports that Azerbaijan is considering amnesty for members of those forces who voluntarily put down their arms. Generally, combatants enjoy belligerent immunity from prosecution for actions during an armed conflict that comply with IHL and do not require a separate grant of amnesty. This raises the question as to why one might be necessary here.

NKR soldiers satisfy the conditions for combatant status articulated in Article 4(A)(2) of Geneva Convention III on prisoners of war – being commanded by a person responsible for subordinates, having a distinctive sign or emblem like a uniform, carrying weapons openly, and conducting operations in accordance with the law of war. However, most members of the NKR forces are nationals of Azerbaijan. This precludes them from claiming belligerent immunity for participating in the conflict because, as the DoD Law of War Manual notes, “international law does not prevent a State from punishing its nationals whom it may capture among the ranks of enemy forces” (§ 4.4.4.2). Although there is a debate as to whether nationals of a detaining State are entitled to prisoner of war status (Biggerstaff/Schmitt here and here arguing against such status), the ICRC 2020 Commentary to Article 4 is in accord on the matter of belligerent immunity (para. 972). Thus, without Azerbaijan’s agreement to amnesty, NKR soldiers who hold Azerbaijani nationality will be at risk of prosecution in Azerbaijani courts for violations of that State’s domestic law (especially treason). To infuse stability into the crisis, therefore, Secretary of State Blinken has urged Azerbaijan to grant amnesty broadly.

Other Bodies of Law

Former ICC Prosecutor Luis Moreno Ocampo has labeled the current situation a genocide (see his earlier report here). Similarly, in a 22 September statement to the Security Council, the Armenian Minister of Foreign Affairs charged, “The intensity and cruelty of the offensive makes it clear that the intention is to finalize ethnic cleansing of the Armenian population of Nagorno-Karabakh . . . . [W]e have a situation where there is not an intent anymore, but clear and irrefutable evidences of policy of ethnic cleansing and mass atrocities.” Armenia’s Prime Minister similarly has observed, “I consider strange Azerbaijan’s statement that they will leave a humanitarian corridor for the civilian population to leave Nagorno Karabakh. This is a direct act of ethnic cleansing.” Whether Azerbaijan’s authorities are committing genocide, crimes against humanity, or war crimes is fact-dependent and beyond the scope of this post. Nevertheless, in light of past abuses, the international community’s attention must remain firmly fixed on issues of international criminal law as the situation unfolds.

Similarly, tens of thousands of Nagorno-Karabakh residents are fleeing to Armenia and beyond. This implicates refugee law, such as that outlined in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. According to Article 1 of the Convention, a refugee is, inter alia, a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Accordingly, ethnic Armenians holding Azerbaijani nationality who flee Nagorno-Karabakh will be entitled to treatment as refugees by those countries to which they travel (see Grignon).

Finally, Azerbaijan owes international human rights obligations, such as respecting and protecting the right to life, to all individuals on its territory, irrespective of nationality. Human rights obligations are subject to the condition of feasibility in the circumstances. Now that Azerbaijan controls the territory previously occupied by Armenia and its proxy government, its international human rights law duties loom large. The international community is accordingly ratcheting up pressure on Azerbaijan to “uphold its obligations to respect the human rights and fundamental freedoms of the residents of Nagorno-Karabakh and to ensure its forces comply with international humanitarian law” (see, e.g., comments by U.S. Secretary of State Blinken).

Concluding Thoughts

This is not a simple case, legally or factually. And it is one in which, over the decades, there has been legal and moral blood on the hands of both parties and their proxy forces. We want to reemphasize that the discussion above is but a bird’s eye view of select issues. All are more nuanced than possible to explore here.

Moreover, the situation on the ground is evolving rapidly. In light of the risks the crisis poses to the affected civilian population and to regional and international instability (especially in light of Russia’s involvement), the international community must guard against allowing its attention to be distracted.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

Major Kevin S. Coble is an active-duty Army judge advocate and a military professor in the Stockton Center for International Law in Newport, Rhode Island.